These are teaching slides for my undergraduate electronic law class.

1. Electronic Transactions Law
INTRODUCTION
Department of Commercial Law
1 University of Cape Town

2. ELECTRONIC TRANSACTIONS LAW
 *"What's in a name? That which we call a rose by
any other name would smell as sweet."Romeo and
Electronic Transactions Law
Juliet (II, ii, 1-2)
 law@IT , cyberlaw@SA, ICT law, IT law, technology
law, tech law, computer law, electronic law, social or
new media law, digital media law, internet law,
cyber law, and web law.
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3. WHAT IS AN ELECTRONIC TRANSACTION?
 No definition in the Electronic Communications and Transactions Act
No. 25 of 2002 (ECTA)
 Working def: commercial and non-commercial transactions
Electronic Transactions Law
concluded wholly or partially through electronic communications,
including e-government services
 S1 ECTA : ‘electronic communication means a communication by
means of data messages’
 ‘data message’ means data generated, sent, received or stored by
electronic means and includes (a)voice, where the voice is used in
an automated transaction; and (b) a stored record;
 ‘data’ means electronic representations of information in any form
1. Does the definition of data messages include voice, where it
is not used in an automated transaction?
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2. Is the definition of electronic communication in ECTA
substantively different from that in the Electronic
Communications Act?

4. TECHNOLOGIES
 Internet (via computers, TVs and mobile phones)
 Online ‘tools’: websites, email, VOIP, social networks
Electronic Transactions Law
R Buys & J Rothman ‘the internet: an overview’ in Cyberlaw@SA
http://www.cyberlawsa.co.za/cyberlaw/cybertext/chapter1.htm
B M Leiner et al ‘Brief history of the internet’
http://www.internetsociety.org/internet/internet-51/history-
internet/brief-history-internet
History of the internet (video) by Melih Bilgil
http://www.youtube.com/watch?v=9hIQjrMHTv4
 Telephone (land and mobile)
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5. TYPES OF TRANSACTIONS & LEGAL ISSUES
 Business to business (B2B ecommerce) Contract
 Business to consumer (B2C ecommerce)
Privacy
 Consumer to consumer (C2C)
Electronic Transactions Law
 Employer to employee (workplace communications)
 Government to business (e-procurement) security
 Government to citizen
Labour Law
Intellectual Tax
property
Criminal law
Jurisdiction Delict
Fundamental Consumer Law 5
rights

6. WHY DO WE NEED ELECTRONIC
TRANSACTIONS LAW?
 Is it just like ‘the law of the horse’?
Frank H. Easterbrook ‘Cyberspace and the Law of the
Electronic Transactions Law
Horse’
Lawrence Lessig ‘The Law of the Horse: What Cyberlaw
Might Teach’
 Do the unique characteristics of e-commerce
require the development of a separate body of
law/regulation?
 what is the policy framework for this law?
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7. SOUTH AFRICA’S E-COMMERCE POLICY
 (1999) Discussion Paper
 (2000) Green Paper identified the following underlying
principles (par 1.2):
Electronic Transactions Law
1. Quality of life
2. International Benchmarking
3. Consultative process
4. Flexibility
5. Technology neutrality
6. Supporting private-sector-led and technology-based solutions and
initiatives
7. Public-Private partnership
8. Supporting small, medium and micro enterprises (SMMEs) and
informal sector
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8. SOUTH AFRICA’S E-COMMERCE POLICY (2)
GREEN PAPER
Focus issues Themes
Electronic Transactions Law
 the need- 1. Legal and regulatory issues
1. for confidence in the 2. Building trust in the digital
security and privacy of
transactions performed economy
electronically; 3. Access, infrastructure and
2. to enhance the information enabling
infrastructure for electronic
commerce; 4. Technologies
3. to establish rules that will 5. Maximising the benefits:
govern electronic economic and social
commerce;
impacts
4. to bring the opportunities of
e-commerce to the entire
population
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* No White Paper

9. POLICY (3)
 National Information Society and Development Plan,
2007 (e-strategy required by s5(1) ECTA)
Electronic Transactions Law
 National Integrated ICT Policy Colloquium, 19 April 2012
(e-commerce & digitising government commission) see
overview at
http://kganyago.org/2012/04/24/the-beginning-of-a-
beginning-integrated-ict-policy-for-south-africa/
 National Cyber Security Policy Framework for South
Africa approved by Cabinet, 2012
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10. DISCUSSION
 Is the policy framework comprehensive and
meaningful?
Electronic Transactions Law
 Has the policy framework lead to appropriate
legislation?
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11. RELEVANT LEGISLATION
1. The Constitution, 1996
2. The Promotion of Access to Information Act, 2000
Electronic Transactions Law
3. Independent Communications Authority of South Africa Act,
2000
4. Electronic Communications and Transactions Act, 2002
5. The Regulation of Interception of Communications Act,
2002
6. The Electronic Communications Act, 2005
7. National Credit Act, 2005
8. Consumer Protection Act, 2008
9. Protection of Personal Information Bill, 2009
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* And all relevant Regulations

12. OTHER DOMESTIC SOURCES OF LAW
 Common law (defamation, privacy contract)
 Trade usage and custom (standards, ‘code as law’)
Electronic Transactions Law
 Authoritative academic texts
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13. INTERNATIONAL LAW
 Impacts domestic law in 3 ways viz
1. informs domestic legislation e.g. ECTA & UNICTRAL
Electronic Transactions Law
Model Law
2. Customary international law is binding; s232 Constitution
‘Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament.’
3. Domestic law is to be interpreted with recourse to
international law; s233 Constitution ‘When interpreting any
legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.’
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14. INTERNATIONAL LAW
 Article 38(1) of the Statute of the International Court of
Justice defines international law as:
(a) international conventions (treaties), whether general
Electronic Transactions Law
or particular;
(b) international custom, as evidence of a general
practice accepted as law;
(c) the general principles of law recognized by civilized
nations;
(d) judicial decisions and teachings of the most highly
qualified publicists as subsidiary means for the
determination of rules of law.
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15. RELEVANT INTERNATIONAL LAW, SOME
EXAMPLES
 United Nations Commission on International Trade
Law (UNCITRAL)
Electronic Transactions Law
 Model Law on Electronic Commerce (1996, revised 1998)
 Model Law on Electronic Signatures (2001)
 United Nations Convention on the Use of Electronic
Communications in International Contracts, 2005 (SA not a party)
Task
Find and list other sources of relevant international law.
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16. SOME IMPORTANT INTERNATIONAL AGENCIES
 UNICTRAL
 ITU (International Telecommunication Union)
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 The United Nations Economic and Social Commission for Asia
and the Pacific(ESCAP)
 Organisation for Economic Co-operation and Development
(OECD)
 World Trade Organisation (WTO)
 Southern African Development Community (SADC)
- Declaration on Information and Communications Technology (ICT),
2001 & Draft SADC model law on electronic transactions and
electronic commerce, 2012
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17. Electronic Transactions Law
Electronic Transactions Law compiled by Caroline B
Ncube is licensed under a Creative Commons Attribution-
NonCommercial-ShareAlike 2.5 South Africa License.
To view this a copy of this license visit
http://creativecommons.org/licenses/by-nc-sa/2.5/za/
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